Conservative Judge Says Breakup Was Hard to Do

Washington Post

Published
4:00 am PDT, Thursday, June 8, 2000

2000-06-08 04:00:00 PDT Washington -- In the end, after more than two years, 78 days of trial and thousands of pages of evidence, the final decision for the federal judge overseeing U.S. vs. Microsoft came with enormous reluctance.

Thomas Penfield Jackson, the U.S. District judge who oversaw one of the most important trials in the history of U.S. business, said in an interview that he had little choice but to accept the proposal of the U.S. Justice Department and the states because he wanted to avoid establishing a conduct-restraining order that required an onerous regulatory scheme.

"Given my personal preferences, I'd much prefer to have market forces accomplish as much of the remedy as could be done," Jackson said in an interview. "I would have preferred a conduct remedy. I've always thought the best remedy was the one the parties could have negotiated between themselves."

In an hourlong conversation in his chambers, the judge said that rather than see a breakup imposed, the lawsuit could be settled out of court -- even now. He urged both sides to "swallow their own reluctance to compromise and reach a remedy that both sides, if not elated by, nevertheless are willing to extend."

Short of that, Jackson said he decided to accept whatever remedy had been proposed by the Justice Department and a majority of the 19 state attorneys general involved.

Appointed to the court by President Ronald Reagan in 1980, Jackson emphasized his conservative Republican credentials and noted that he has not always sided with the government in his courtroom. In an earlier case, he rejected a huge recall of automobiles advocated by federal auto-safety administrators.

"It's important you understand what my function is here," Jackson said calmly. "I am not an economist. I do not have the resources of economic research or any significant ability to be able to craft a remedy of my own devising."

In the interview, rare but not unprecedented for a federal judge, Jackson acknowledged that the case could grow in importance for the Internet age and the "new economy" as it moves to the Supreme Court.

"I would suspect that whatever the Supreme Court has to say when it ultimately gets the case will in large measure chart the direction of the so-called new economy," Jackson said.

Asked if he intended to approve a government motion to send the case quickly to the Supreme Court, bypassing the U.S. Court of Appeals in Washington, Jackson said, "I am favorably inclined toward it. I'll look at whatever is presented to me."

But he rejected the idea that he wanted to end-run the appeals court and that his verdict was "quarreling" with the appellate judges.

Jackson rebuffed suggestions from Microsoft defenders that he has sided with the government because he is biased or out to get the company: "Believe me, I have no grudge against Microsoft. (Before the case) I knew nothing about them really, other than the fact that they built the software used on my computer."

Asked to recall the trial and any telling moments or turning points, Jackson said the evidence was cumulative. He said that a heavily reported, botched videotape demonstration did not reflect poorly on the company's trustworthiness, and he concluded it was not an attempt to deceive the court.